SCOTUS Denies Emergency Injunction Against Maine Vaccine Mandate

There will be no religious exemptions. For now, at least.

Robert Burns reporting for WaPo (“Supreme Court won’t block vaccine mandate for Maine health-care workers with religious objections“):

The Supreme Court on Friday turned down a request from a group of Maine health-care workers to block a state coronavirus vaccination mandate that does not contain an exception for religious objectors.

Three conservative justices dissented from the decision. While the majority did not give a reason for denying the request, Justice Neil M. Gorsuch wrote that the workers deserved an exemption. “No one questions that these individuals have served patients on the front line of the COVID-19 pandemic with bravery and grace for 18 months now,” wrote Gorsuch, who was joined by Justices Clarence Thomas and Samuel A. Alito Jr. “Yet, with Maine’s new rule coming into effect, one of the applicants has already lost her job for refusing to betray her faith; another risks the imminent loss of his medical practice.”

The court twice before has refused to step in regarding vaccination requirements — Justice Amy Coney Barrett rejected a request from Indiana University students and Justice Sonia Sotomayor declined to halt a New York City mandate for public school teachers. Neither justice provided a reasoning. But both the university and the school system provided a religious exemption.

Nine pseudonymous health-care workers asked the court to block a requirement that they be vaccinated by Friday to keep their jobs. Represented by the religious legal organization Liberty Counsel, the workers said Maine was an “extreme outlier” in allowing only a medical exception for refusing the vaccine, and not an additional one based on religious objection, as they said 47 other states have done.

“Almost every other state has found a way to protect against the same virus without trampling religious liberty — including states that have smaller populations and much greater territory than Maine,” they said in their request to the Supreme Court. “If Vermont, New Hampshire, Alaska, the Dakotas, Montana, Wyoming, California, and the District of Columbia can all find ways to both protect against COVID-19 and respect individual liberty, Maine can too.” The other states without religious exemptions, it said are Rhode Island and New York, although New York’s has been blocked for now.

The Supreme Court’s liberal justices, along with Chief Justice John G. Roberts Jr., have generally been content with allowing local officials to set rules for vaccinations and other emergency requirements related to the pandemic.

Barrett has joined the conservatives when religious issues have been at stake. But she wrote separately in the Maine case to say she was not sure relief was warranted, and the court should not make such a decision “on a short fuse without benefit of full briefing and oral argument.” Joined by Justice Brett M. Kavanaugh, she said that was not what the court’s emergency docket should be used for. “In my view, this discretionary consideration counsels against a grant of extraordinary relief in this case, which is the first to address the questions presented,” she wrote.

The court lately has come under intense criticism in Congress and elsewhere for making important decisions in the “shadow docket.

A federal district court and a panel of the U.S. Court of Appeals for the 1st Circuit said Maine’s requirements were allowable because they were not aimed at religious exercise. The appeals court said the state had three good reasons for the health-care worker requirement: ensuring workers remain able to provide needed care in an overburdened health-care system, protecting the health of those most vulnerable to the virus, including those who could not take it for medical reasons, and “protecting the health and safety of all Mainers, patients and health-care workers alike.” “In confronting the various risks to its own population and its own health-care delivery system, Maine’s rule does not violate the Constitution,” the panel said.

It’s important to emphasize that this is just a preliminary ruling. The Court has refused to grant extraordinary relief by what amounts to a temporary injunction before hearing the case in full. It’s conceivable that they might rule the other way once the case winds its way to them.

I agree with Barrett and Kavanaugh that this simply isn’t what the “shadow docket” is for.

The Gorsuch-Thomas-Alito dissent is silly. That the applicants have served “on the front lines against COVID” is the sort of special pleading one would expect from their attorneys, not from the damned Supreme Court. And Maine is surely allowed to make different laws than other states! That’s why we have a federal system, after all.

Similarly, the notion that Maine has to offer religious exemptions since they allow medical ones strains credulity. The dissenters note that a doctor’s note that doesn’t even specify the underlying condition or other rationale for the exemption. While I grant that this practically begs for abuse, the reason for this is obvious: a longstanding desire to protect the privacy of health information.

Their one solid argument, which they oddly save for last, is this:

The State allows those invoking medical reasons to avoid the vaccine mandate on the apparent premise that these individuals can take alternative measures (such as the use of protective gear and regular testing) to safeguard their patients and co-workers. But the State refuses to allow those invoking religious reasons to do the very same thing.

First, I’d say that the rationale for a medical exemption is simply stronger. It’s more burdensome to demand someone risk their life or well-being than to violate a religious belief. (Particularly when no serious religious denomination opposes this vaccine.) Second, one presumes a relatively small number of people will qualify for medical exemptions.

Regardless, this seems the kind of thing that can be litigated through the system. The Supreme Court shouldn’t be in the business of intervening in individual cases like this on a preliminary basis except under extraordinary circumstances.

FILED UNDER: Law and the Courts, Supreme Court, , , , , , , , , , , , , , , , , ,
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.


  1. Tony W says:

    Seventh Day Adventists are the only group I can think of that has any sort of legitimate claim to a religious exemption on vaccination.

    Not that I want to support it, but they do have a credible history of killing their kids through neglect.

    Otherwise, it’s just political posturing under the guise of “religious freedom” with nothing behind it.

  2. CSK says:

    The Trumpkins are calling Barrett and Kavanaugh Amy Coney Iscariot and Brett Wilkes Booth.

  3. wr says:

    “I agree with Barrett and Kavanaugh that this simply isn’t what the “shadow docket” is for.”

    Exactly. The “shadow docket” is for outlawing abortion, making sure black folks are executed and granting huge favors to right-wing donors.

  4. OzarkHillbilly says:

    Pinned Tweet
    Jesus F-ing Christ

    Sep 5
    Your religion is not my burden to carry.

  5. KM says:

    The trouble with religious exemptions legally here is that they are almost all predicated on easily disprovable lies. The correctness of the belief is not in question but rather what’s prompting the belief. The culture of anti-vaxxers is permeated with falsehoods, fake anecdotes and straight up insanity that we would not let pass for any other request of an exemption to a law. For instance, if someone claimed that fetal parts were used to make seatbelts, can they be legally permitted to not wear them? What about someone claiming there’s no such thing as Germ Theory or bacteria and God’s hand is what decides who gets food poisoning – can they be exempt from food and cleaning guidelines? Can Exon-Mobile get a religious exemption for the company since God controls the weather so clearly climate change is heresy they can be involved in?

    COVID anti-vaxxers have latched on to religious exemptions because the GOP drove a dump truck through that particular loophole. “Belief” is now so elastic you can make it up on the spot and dare someone to prove you don’t sincerely hold it. The smarter judges have likely figured out that if the idiots keep pushing this, a legal test of belief strength, sincerity or validity is inevitable and that’s a bad thing. It’s bad over all and it’s particularly fatal for them since they’ll fail on all their favorite causes. The law requires a baseline and establishing that baseline ruins the whole idea of a wide-open “sincerely held belief”. Barrett and the others are likely thinking this is why they can’t have nice things and all their careful planning of how to keep the pill away from women and gays from services are being threatened by idiots who think a shot gives them built-in wifi capabilities.

  6. Michael Reynolds says:

    The era of the obnoxiously aggressive atheist ended because the Christians started doing our work for us. I love it when they trivialize and politicize their religion.

  7. gVOR08 says:

    And Maine is surely allowed to make different laws than other states!

    I read a good book on the Federalist Society, Ideas With Consequences. Actually, it’s not very good as a book. It’s a highly selective, fawning take on the conservative legal movement, but unintentionally revealing. The FS wants to drive a truck through the Equal Protection clause of the 14th Amendment, overturn 1870s precedent called The Slaughterhouse Cases, and say a business in any state has a right to be regulated no more strictly than it would be in the most lax state.

  8. Pace says:

    @Tony W: ;Indeed, far better that they kill them with poison injections mandated by the state.

  9. Mikey says:

    @Tony W:

    Seventh Day Adventists are the only group I can think of that has any sort of legitimate claim to a religious exemption on vaccination.

    I haven’t been SDA for 30+ years but I don’t recall any particular opposition to vaccination–I got all the standard ones as a child, because even the SDA elementary school I went to required them.

  10. gVOR08 says:

    Over at TAC Dreher is outraged because an HR department asked an exemption seeker if she objected to other medications dependent on stem cell lines. He argues explicitly that consistency of belief is in no way an expression of sincerity of belief. On the positive side, I think he wrote the whole post without mentioning Orban.

  11. Moosebreath says:


    “He [Dreher] argues explicitly that consistency of belief is in no way an expression of sincerity of belief.”

    Spoken like a man who has twice changed what branch of Christianity he subscribes to (so far).

  12. Mimai says:



    I think this is an interesting consideration. Which is not to say that it’s being, um, sincerely applied to the current context.

    As a general matter, it seems to me that requiring 100% consistency leads to philosophical nihilism. Unless the requirement depends on the belief? A caveat that carries its own host of problems, not the least of which is, um, inconsistency.

  13. Just nutha ignint cracker says:

    @CSK: That’s sooooooo sad. ( 🙁 ) It couldn’t happen to two more innocent and otherwise likeable people, either.

    ETA: Life is so unfair sometimes, eh?

  14. CSK says:

    @Just nutha ignint cracker:
    I think it’s hilarious. Every time Trump picked a justice, cabinet member, or White House staffer, the Trumpkins would go into ecstasies over what a brilliant choice President Lardass had made. Then, when the person proved to be less than 100% on board with Lardass, whoever it was suddenly became a fiend, a traitor, a backstabber.

  15. gVOR08 says:

    @Mimai: I’ve seen reference to other organizations asking the same question about objecting to other meds connected to stem cells. I suspect it reflects similar legal advice. You brought up 100% consistency. The religious exemption applicants are being asked to show even the slightest shred of consistency.

  16. Just nutha ignint cracker says:

    @CSK: Hilarious. Unfair. SS/DD.

  17. Mimai says:


    Don’t get me wrong, I think the overwhelming majority of these objections are thinly veiled political/cultural {childish attempt to instigate a fight between Steven and MarkedMan} temper tantrums. And I think it’s totally appropriate for organizations to expect the objectors to demonstrate a modicum of consistency in living in accord with their stated beliefs.

    My initial comment was more about the broader consideration of beliefs, consistency, and sincerity, which I find interesting.

    One might sincerely hold beliefs that are internally inconsistent and live them accordingly (that is, inconsistently). Or, one might sincerely hold internally consistent beliefs and inconsistently live them.

    Both of these seem rather common because it is humans we are talking about.

    Again, to reiterate, my point isn’t about vaccine objectors. Rather, I’m just trying to flesh this out a bit more and am keen to hear what others think.

  18. Gustopher says:

    @Michael Reynolds:

    The era of the obnoxiously aggressive atheist ended because the Christians started doing our work for us.

    And yet, you kind of made it your brand here for a while 🙂

    I’ve always found the Angry Atheist Brigade to be a bit more annoying than the Religious Freaks because they try to speak for all atheists — which by definition includes me. I expect the reasonable religious folks feel the same way about the Religious Freakshow Folks.

    (I’m more of a “Dude, if your magical sky daddy brings you comfort go for it, go for it, just leave me alone. I’m just going to go over here and pretend my cat loves me even though she’s a cat” kind of guy)

  19. OzarkHillbilly says:

    @Gustopher: Yep, that’s where I’m at.

  20. Hal_10000 says:

    Kind of amazing to watch the GOP reaction to this: how Barrett and Kavanaugh have “betrayed” them. Just goes to show how conservatism has curdles into mindless opposition. Unless you rule against the libs, you’re not conservative. That’s where the thought begins and ends.

  21. DrDaveT says:

    @Tony W:

    Seventh Day Adventists […] do have a credible history of killing their kids through neglect.

    Are you sure you don’t mean Christian Scientists or Jehovah’s Witnesses? The Adventists are certainly weird and flaky and inconsistent in their beliefs, but I wasn’t aware that they were neglectful of their kids’ health.